Amicus Curiae Brief — Bradley v. School Bd. of Richmond

ttt ee

SUPREME COURT, U, B.

No. 72-1822,

Yn the Supreme Gourt of the Writed States

OctoBEeR TERM, 1973

CaROLYN BRADLEY, ET AL., PETITIONERS

Vv. 4 :

Tae ScHoot Board or THE City oF RICHMOND, ET AL.

ON WRIT OF CRRTIORARI TO THE UNIT?RD STATES COURT OF

APPRALS FOR THE FOURTH CIROUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

*

ROBERT H. BORK,

Solicitor General,

J. STANLEY POTTINGER,

Assistant Attorney General,

LAWRENCE G. WALLACE,

Deputy Solicitor General,

GERALD P. NORTON,

Assistant to the Solicitor General,

JEREMY I. SCHWARTZ,

F . Attorney,

Department of Justice,

Washington, D.C. 20530.

Page

Question presented... .... snes sceeee eee 1

Interest of the United States__.............---- . 1

Statement... ... 22. .005000n eel ee 3

Introduction and summary of argument- -------- 5

Argument:

I. Federal Courts Have Authority, In The

Absence Of Legislation To The Con-

trary, To Award Attorneys’ Fees To A

Plaintiff Who As A “Private Attorney

General’”’ Benefits A Class Or Group By

Vindicating Constitutional Or Other

Legal Obligations Of The Defendant To

The Plaintiff And Others ----_-_---_--- 7

II. There Was No Statutory Bar To The

District Court’s Award Of Attorneys’

» Fees In This Case__.......---------- 12

Conclusio—... .... csicvivecenn see 14

CITATIONS

Cases:

Arcambel v. Wiseman, 3 Dall. 306___--2----- 7

Boddie v. Connecticut, 401 U.S. 371.....__--- 10

Bradley y. School Board, 345 F. 2d 310, re-

manded on other grounds, 382 U.S. 103__-- 3

Brown v. Board of Education, 349 U.S. 294___ ll

California Motor Transp. Co. v. Trucking Un-

limsted, 404 U.S. 508. .................-- 10

Central R.R. & Banking Co. y. Pettus, 113 U.S.

Se

(D

527-662—73——-1

II

Cases—Continued

Fleischmann Distilling Corp. v. Maier Brewing sage

Co., 386 U.S. 714____-__-------------_--- 8,13

Green v. County School Board, 391 U.S. 430.. 3, 4

Hall v. Cole, 412 U.S. 1___.--.,-- 5, 6, 8, 9, 10, 12

Hawenstetn v. Lynham, 100 U.S. 483______--- 7

Hecht Co. v. Bowles, 321 U.S. 321__________- 14

Knight v. Auciello, 453 F. 2d 852_---.------ 9

Lee v. Southern Home Sites Cor, 444 F. 2d

TU oe ee enon eae eens os 9

Mills v. Electric Auto-Lite Co., 396 U.S. 375__8, 9, 12

Mitchell v. DeMario Jewelry, Inc., 361 U.S.

ok eonaee aan eee eneneaeeeesene 14

Newman v. Piggie Park Enterprises, Inc., 390

RE WO cece nice teen awewes 2,9, 13

Northcross v. Board of Education, 412 U.S. 427_ 13

Oelrichs v. Spain, 15 Wall. 211. ____-_____- 7

Porter v. Warner Holding Co., 328 U.S. 395_- 14

Sprague v. Ticonic Nat'l Bank, 307 U.S. 161_- 8

Thompson v. School Board, 472 F. 2d 177___- 5

Traficante v. Metropolitan Life Ins. Co., 409

Ri BIR eis 6s pee ea eee eel ween 2,9

Trustees v. Greenough, 105 U.S. 527________- 8

Virginian Ry. Co. v. System Federation, 300

Wy os BED o whee niieeneawnnnetlaceaes 14

Statutes:

Civil Rights Act of 1964, 78 Stat. 241, as

amended, 42 U.S.C. 1981, et seq.:

42 U.S.C. 1983__.........---.--------- 7,13

42 U.S:C. 2000a-3(b) _ _ .,. ..-.--------- 2,13

42 U.S.C. 2000c_ _...--------- eee 3

42 U.S.C. 2000c-6______-_._----------- 11

OD TE FG kde ice caccess 11

42 U.S.C. 2000e-5(k)_-...._-.-._------ 2,13

42 U.S.C. 3612_____------------------ 2

Ml

Statutes—Continued

Civil Rights Act—Continued a

IXmergency School Aid Act of 1972, 20

U.S.C. (Supp. I) 1617___----------- 5, 13

TO UM Bb i Bs eee ws 13

15 U.S.C. 77k(e)_---.----------------- 13

28 U.S.C. 2412__...--- 2 2,12

Or ewe 9

29 U.S.C. 464___________-2_---------- 9

29 U.S.C. 482______- pees Annee ae qe a 9

29 U.S.C. S21 (a).......-.....2.2..2..- 9

Miscellaneous:

Rule 57(7), Rules of the Supreme Court _-_ -- 6

Fed. R.Civ.P.:

Rule 37(a)........-----.------1---2.- 6

FE I nee ceedencsenenensen 6

£OPTIONAL TUT: RP NTE RTE ee RICO te

Sn the Supreme Court of the Gnited States

OcToBER TERM, 1973

No. 72-1322

CAROLYN BRADLEY, ET AL., PETITIONERS

v.

THE Scuoot Board oF THE City oF RICHMOND, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

QUESTION PRESENTED

Whether the district court had authority to award

attorneys’ fees for the plaintiffs’ successful éfforts in

obtaining injunctive relief to require their school

board to adhere to its constitutional’ and statutory

duty to desegregate the publie schools.

INTEREST OF THE UNITED STATES

Lawsuits by private parties are an important sup-

plement to the program of the United States for en-

forcing Title IV of the Civil Rights Act of 1964, 42

U.S.C. 2000c, as well as other civil rights statutes.

School desegregation suits are private in form only;

(1)

oe Sh tee ee en ee ee ee

9

the relief obtained is in vindication of a national

policy of high priority. The availability of attorneys’

fee awards necessarily expands the scope of enforce-

ment and augments the resources of the federal gov-

ernment in civil rights cases. Cf. Trafficante v. Metro-

politan Life Tns. Co., 409 U.S. 205, 210.

Congress has recognized that the Nation must in

large measure rely upon private litigation as a means

of securing compliance with civil rights laws and the

constitutional requirements they reflect. See Newman

v. Piggie Park Enterprises, Inc., 390 U.S. 400, 401.

For example, Congress has expressly limited the At-

torney General’s authority to sue in the school deseg-

regation area to instances where the Department of

Justice has received a written complaint and certifies

that the complainant cannot initiate and inaintain liti-

gation on his own. 42 U.S.C. 2000c. Also, Congress has

expressly authorized the award of counsel fees in several

civil rights statutes. See, c.g., 42 U.S.C. 2000a-3(b)

(publie accommodations), 2000e—5(k) (employment),

and 3612 (housing). The efficacy of private litigation in

these fields has significant implications for the re-

sponsibilities and resources of the United States.

The United States, however, is not likely to be di-

rectly affected by the decision in this case in its ca-

pacity as a litigant because Congress has provided

that, except where specifically authorized by statute

(see, e.g.,n. 2, infra) attorneys’ fees shall not be included

ina judgment for costs in a civil action by or against the

United States or any agency or official thereof acting in

his official capacity. 28 U.S.C. 2412.

1 See also n. 2, infra.

SRE ZIRT ENG LenS Sree to enahatingy : — _

3

STATEMENT |

The facts are described in detail in the briefs of the

parties. We summarize here only the procedural his-

tory of this litigation. |

This class action, commenced in 1961, sought equi-

table relief requiring the School Board of the City of

Richmond, Virginia, to desegregate the Richmond

public schools (App. 113a, 160a-16la, n. 1). The case

before this Court concerns solely the propriety of the

award to petitioners of attorneys’ fees for desegrega-

tion litigation coneerning the schools in Richmond for

the period from March 10, 1970, to January 29, 1971

(App. 121a,n.5).

In a prior stage of this litigation the district court

had approved a “freedom of choice’’ plan to desegre-

gate the Richmond publie schools. See Bradley v.

School Bd., 345 F. 2d 310 (C.A. 4), remanded on

other grounds, 382 U.S. 103. On May 27, 1968, how-

ever, this Court held that freedom of choice plans

were constitutionally inadequate unless they actually

resulted in a unitary desegregated school system, and

the Court imposed on school boards the affirmative

duty to ‘come forward’? with realistic plans to

achieve such systems “now.” Green v. County School

Bd., 391 U.S. 430, 438-441. Despite the apparent in-

adequacy of the then-existing plan, the unconstitu-

tionality of which was eventually conceded (App.

114a), the respondent school board failed to adopt a

new plan that would satisfy the applicable constitu-

tional and statutory requirements.

Accordingly, on March 10, 1970, petitioners moved

in the district court (App. 25a) for the replacement

Mita conse pe 5 DER ICT YEN SURI EERE PE ART AE? eR DOE RIL ORGS SFOS

4

of Richmond’s freedom of choice plan with a plan

that complied with this Court’s decision in Green Vv.

County School Board. The motion included a request

for attorneys’ fees. Between that date and May 26,

1971, when the district court ruled on the motion

for attorneys’ fees, the court had disapproved two

plans submitted by the respondents (App. 115a-118a),-

and had finally accepted a third for the 1971-1972

school session (App. 118a). The court determined that,

on the record before it, an award of attorneys’ fees

in the sum of $43,355 was justified by the respondents’

conduct both in making necessary petitioners’ 1970

reopening of the ease and in the course of the ensu-

ing phase of this litigation (App. 128a-135a). Alter-

natively, the district court held that the fee award was

justified by the fact that the petitioners had acted as

‘‘private attorneys general’? in securing respondents’

compliance with important constitutional and statu-

tory obligations, this vindication of paramount fed-

eral policies having benefitted not only the petitioners

but an entire class (App. 128a, 135a-140a).

The court of appeals (with one judge dissenting

reversed, holding that the district court was without

authority to award attorneys’ fees. The court held,

first, that the respondents’ conduct did not consti-

tute the ‘‘obdurate obstinacy’’ which it said was a

requisite for an attorney fee award in school desegre-

gation cases (App. 16la-177a). The court further

concluded that, in the absence of express statutory

authority, there is no other basis on which attorneys’

fees could properly be awarded (App. 177a-186a).

PPE IL ON SE OLESEN ORE Ft — cewer: . 7 - a

—e CEES TIE REIN GE GL LELEE SOLE ELIE EG LG IES SPE. GLI IONE LY IE I PRS NEE

FMP OERII DN

SERED AS OTIS ERI RP TE EY AR IE

Finally, employing the maxim expressio unium est

exclusio alterius, the court relied upon the fact that a

provision for attorneys’ fees in school desegregation

cases was not included in the Civil Rights Act of 1964 as

indicating a congressional intent to constrict the avail-

ability of fee awards (App. 180a-181a).’

In this Court the respondents seek to defend the

decision of the court of appeals by contending that

desegregation cases should be an exception to the

principles established by decisions of this Court

and other courts authorizing attorney fee awards on

grounds other than the “conduct’”’ of the defendant

(Resp. Br. 5-7, 23-24, 26).

INTRODUCTION AND SUMMARY OF ARGUMENT

The court of appeals erred in concluding that, in

the absence of express statutory authority, the only

basis for an award of attorneys’ fees in a school de-

segregation case is conduct on the part of the defend-

ants amounting to ‘‘obdurate obstinacy.”* The dis-

The panel in this case also adopted the court’s en bane

decision in Thompson v. School Board, 472 F. 2d 177 (C.A.

4), that Section 718 of the Emergency School Aid Act of

1972, 20 U.S.C. (Supp. II) 1617, does not support an award

of attorneys’ fees for legal services rendered prior to June 30,

1972 (App. 186a-188a). Since we believe that the district

court’s award of attorneys” fees was proper on other grounds

when it was made ( prior to the enactment of Section 718),

we do not discuss that issue.

* As this Court noted in Hall v. Cole, 412 U.S. 1, 5, 15, there

is a line of authority for awarding attorneys’ fees based on the

conduct of a party in a particular case, either before or during

the litigation. We do not rely upon this rationale in urging

reversal of the court of appeals’ decision. The “bad faith,”

“obdurate obstinacy,” or “conduct-oriented” rationale is essen-

527-662—73——2

a tae te Nate » -

trict court’s award of attorneys’ fees in this case

should have been sustained under principles previ-

ously established by this Court and other courts

concerning the inherent equitable authority of federal

courts to award attorneys’ fees in various circum-

stances in the absence of explicit statutory authoriza-

tion.

Thus, an award of attorneys’ fees may be warranted

where—as here—the plaintiff’s litigation produces sig-

nificant common benefits, pecuniary or otherwise, not

only for the plaintiff but also for others in a group or

class, thereby making it appropriate that the costs of

obtaining the benefit be shared through the award of

fees. Support for the fee award in this case can also

be found in cases authorizing such awards where—as

here—the plaintiff acts as a private attorney general

in vindicating important federal constitutional or

statutory policies.

The court of appeals’ inference, from the lack of

an express provision for attorneys’ fees in related

tially punitive in nature. Hall v. Cole, supra, 412 U.S. at 5. It

is seriously limited as a means for inducing attorneys to handle

meritorious cases challenging illegal conduct for persons unable

to afford an attorney, for there is insufficient predictability as

to the availability of a fee award. The “bad faith” rationale is

related to other similar sanctions used to regulate the conduct

of parties and attorneys. /.g., Fed.R.Civ.P. 37(a), 56(g); cf.

Rule 57(7) of the Rules of this Court. The propriety of its

application in a particular case calls for a detailed review of

conduct before or during litigation, and courts may be reluctant

to award fees if to do so they must brand one side with an

opprobrious characterization. In many, perhaps most, of the

cases in which attorneys’ fees have been awarded on this basis,

an award would have been warranted under the “common bene-

fit” or “private attorney general” rationales discussed later in

the text.

SLE LEE LAER SEA GEE LOD NES ICL A LAE TOONE INGE OTE ER ES ENT GS A ON AR RRR EY oes

BT ia Qe

WEL I YR a a Mt

7

legislation, that a fee award is barred in this case, is

contrary to this Court’s decisions requiring either an

explicit limitation of the power of federal courts to

award this traditional equitable remedy or such a de-

tailed and intricate scheme of remedies that such a_

limitation may fairly be implied. The finding of an

implied statutory bar was particularly unwarranted

here, where the suit was filed pursuant to the broad

grant of equitable jurisdiction in the federa] courts

under 42 U.S.C. 1983 to “‘redress” deprivations of con-

stitutional rights.

; ARGUMENT

I. FEDERAL COURTS HAVE AUTHORITY, IN THE ABSENCE

OF LEGISLATION TO THE CONTRARY, TO AWARD ATTOR-

NEYS’ FEES TO A PLAINTIFF WHO AS A “‘PRIVATE ATTOR-

NEY GENERAL’’ BENEFITS A CLASS OR GROUP BY VINDI-

CATING CONSTITUTIONAL OR OTHER LEGAL OBLIGATIONS

OF THE DEFENDANT TO THE PLAINTIFF AND OTHERS

1. The court of appeals’ basic premise in this case—

that, in the absence of statutory authority, attorneys’

fees may be awarded only in the event of conduct

constituting “obdurate obstinacy’’—is contrary to the

decisions of this Court. Only last term, this Court

reiterated that while under “the traditional American

rule’”’ attorneys’ fees may not ordinarily be awarded

(in the absence of statutory or contractual authority)

to a successful plaintiff in an action at law between pri-

vate parties for damages,‘ ‘‘federal courts, in the

exercise of their equitable powers, may award attor-

*E.g., Arcambel v. Wiseman, 3 Dall. 306; Day’ v. Wood-

worth, 13 How. 363; Oelrichs v.. Spain, 15 Wall. 211; Hauen-

stein v. Lynham, 100 U.S. 483.

IES

8

neys’ fees when the interests of justice so require.”

Hall v. Cole, supra, 412 U.S. at 4-5. Derived from “the

original authority of the chancellor to do equity in

a particular situation” (Sprague v. Ticonic Nat'l

Bank, 307 U.S. 161, 166; see, e.g., Trustees v. Green-

ough, 105 U.S. 527, 532), this is an inherent power

to be exercised in accordance with principles of equity.

412 U.S. at 5. Beyond indicating that cases warrant-

ing an award of attorneys’ fees are likely to be the

exception, rather than the rule (see Mills v. Electric

Auto-Lite Co., 396 U.S. 375, 391-392), this Court has

not attempted to circumsceribe the outer limits of this

power, except, of course, to recognize that it may be

limited by statute. E.g., Fleischmann Distilling Corp.

v. Maier Brewing Co., 386 U.S. 714. Rather, as this

Court recognized in Hall v. Cole, ‘‘federal courts do

not hesitate to exercise this inherent equitable power

whenever ‘overriding considerations indicate the need

for such a recovery.’ ’’ 412 U.S. at 5.

One line of decisions has held the award of attor-

neys’ fees to be proper where the plaintiff’s litigation

has produced significant benefits for others besides the

plaintiff, such as by preventing or ifhdoing illegal

action by the defendant and thereby protecting, cre-

ating or recovering a common fund (T'rustees Vv.

Greenough, supra; Central R.R. & Banking Co. v.

Pettus, 113 U.S. 116); by establishing a precedent

that will permit others to require the defendant to

respect their rights (Sprague v. Ticonic Nat’l Bank,

supra; or by establishing a violation of law on a

matter as to which the defendant owes a fiduciary

9

duty to the plaintiff and others. F.g., Mills v. Electric

Auto-Lite Co., supra; Hall v. Cole, supra. The deci-

sions in Mills and Hall establish that the “benefit”

produced by the plaintiff’s litigation need not be

pecuniary in nature and need not have monetary

value. E.g., Mills, supra, 396 U.S. at 392, 395-396 ;

Hall, supra, 412 U.S. at 5-6, n. 7.

Under another line of authority, attorneys’ fees

have been awarded where the plaintiff acts as “pri-

vate attorney general” (cf. Newman v. Piggie Park

Enterprises, Inc., supra, 390 U.S. at 402) in vindicat-

ing statutory policy or constitutional commands,

thereby augmenting otherwise limited governmental

enforcement resources. E.g., Lee v. Southern Home

Sites Corp. 444 F. 2d 143 (C.A. 5); Knight v.

Auciello, 453 F. 2d 852 (C.A. 1); ef. Mills v. Electric

Auto-Lite Co., supra, 396 U.S. at 396. See, also, Traff-

cante Vv. Metropolitan Life Ins. Co., supra, 409 U.S. at

211. This Court has previously recognized the important

role played by the availability of an award of attorneys’

fees in cases where the authorized lawsuits by private

parties are likely to be expensive to maintain to a sue-

cessful conclusion and offer little or no promise of finan-

cial gain to the plaintiffs. Thus, in Hall v. Cole, supra, in-

volving provisions authorizing private suit under the

federal labor laws,’ the Court noted that to deny attor-

°The provisions involved in //all were excluded from the

enforcement. authority of the Secretary of Labor (see 29 U.S.C.

521(a); ef. 29 U.S.C. 440, 464, 482) and were therefore enforci-

ble only by an aggrieved private party. Because the Court

aflirmed the attorney fee award in J/a/7 on the “common bene-

fit” rationale, it had no occasion to rely upon the “private at-

torney general” rationale. 412 U.S. at 5-6, n. 7.

10

ney fees could be “tantamount to repealing the Act it-

self by frustrating its basic purpose ;” without the op-

portunity to recover counsel fees “the grant of federal

jurisdiction is but a gesture, for few * * * could avail

themselves of it.” Jd. at 13.

2. The foregoing principles were correctly applied

by the district court in its determination that attorneys’

fees should be awarded here. The distriet court noted

that, despite the obvious public importance of litigation

to enforce constitutional protections, a school desegre-

gation suit is the “sort of enterprise * * * on which any

private individual should shudder to embark” in. view

of the cost, unlikelihood of damages, and possible hos-

tility teward counsel involved in such unpopular causes

(App. 136a). It noted further that the resources of

the opposing parties are disproportionate, since “[f Jew

hitigants—even the wealthiest—come into court with

resourees at once so formidable and so suited to the liti-

gation * * *” as was available to the tax supported

respondents (App. 135a-136a). Moreover,

* A characteristic of many of the cases in each of these lines

of authority is that the plaintiff represented a minority group

or interest and only by resort to the courts could the plaintiif

ensure that the defendants fulfilled their fiduciary or other

obligations to persons in the plaintiff's situation. Particularly

where the defendant is a governmental entity, such litigation

may be regarded as a means of offsetting the possibly limited op-

portunities for minority interests to assure through the political

process that their governing bodies fulfill their duties to them,

as part of their obligations to the general community. The

availability of an attorney fee award in such a case would

presumably have the desirable effect of minimizing some bar-

riers to this exercise of constitutional rights. Cf. California

Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 513,

515; Boddie v. Connecticut, 401 U.S. 371.

11

[t]he private lawyer in such a case most ac-

curately may be described as a “private attor-

nev general.” Whatever the conduct of defend-

ants may have been, it is intolerably anomalous

that counsel entrusted with guarantying the ef-

fectuation of a public policy of nondiscrimina-

tion as to a large proportion of citizens should

be compelled to look to himself or to private

individuals for the resources needed to make

his proof. The fulfillment of constitutional

euaranties, when to do so profoundly alters a

key social institution and causes reverberations

of untraceable extent throughout the eommu-

nity, is not a private matter. * * * [T]he pay-

ment of fees and expenses in class actions like

this one is a necessary ingredient of * * * a

remedy. [App. 139a-140a.] *

Moreover, by this suit petitioners have benefited the

respondent school officials and the public at large by

bringing abeut the elimination of unlawful, diserim-

inatory practices from the schools. They have thus

* When this litigation was instituted in 1961, actions by pri-

vate parties provided virtually the only means of enforcement

of the constitutional constraints against racially segregated

schools. Although the enforcement powers of the federal gov-

ernment have been enlarged since then (e.g., 42 U.S.C. 2000c-6,

2000d et seg.), actions by private parties have made and will

no doubt continue to make an indispensable contribution to

the effort to ensure that state aad local governments observe

their obligations under the Constiution and federal civil rights

laws. Without deprecating in any way what has been accom-

plished by private litigation in this field, it is also fair to sug-

gest that the desegregation of tle Nation’s public schools re-

quired by Brown v. Board of Fducation, 349 Us. 294. 301,

may well have been achieved with far swifter “deliberate speed”

if attorneys’ fee awards had mor readily been perceived to be

available in such cases,

12

benefited the people of Richmond by vindicating their

Fourteenth Amendment rights—just as the corporate

stockholders in Mills were benefited by the plaintiffs’

protection of their suffrage rights and the union mem-

bers in Hall were benefited by the plaintiff’s protec-

tion of their freedom of speech. Requiring the pub-

licly financed school board to reimburse petitioners’

attorneys’ fees out of its funds “simply shifted the

costs of litigation to ‘the class that has benefited from

them and that would have had to pay them had it

brought the suit.’’’ Hall v. Cole, supra, 412 U.S. at 7.

Il. THERE WAS NO STATUTORY BAR TO THE DISTRICT

COURT’S AWARD OF ATTORNEYS’ FEES IN THIS CASE

The court of appeals apparently concluded that an

award of attorneys’ fees in this case was barred by

the failure of Congress to include in the Civil Rights

Act of 1964 any specific provision authorizing attor-

neys’ fees in school desegregation cases (App. 180a-

181a). That conclusion, however, was contrary to this

Court’s decisions concerning statutory preclusion of

attorney fee awards.

While it is unquestioned that Congress can limit a

federal court’s inherent equitable authority to award

attorneys’ fees, a court ought not conclude that its

power has been limited in the absence of ‘ta definitive

and absolute setting of the Congressional face against

the giving of such incidental relief by the courts

where compatible with sound and established equitable

principles.” * Hall v. Cole, supra, 412 U.S. at.72. As

indicated by Hall and Mills vy. Electric Auto-Lite

S E.g.. 28 U.S.C. 2412, discussed supra, p. 2.

13

Co., supra, 396 U.S. at 390-391, such a preclusion

should not be inferred from the mere fact that other

provisions of the legislation in question or related

legislation (see pp. 2, 5, supra) do expressly deal with

attorney fee awards. Implied preclusion may be found,

of course, where Congress has so ‘‘meticulously de-

tailed’ a set of such ‘‘intricate remedies” for a stat-

utory cause of action that it may reasonably be

concluded that an award of attorney fees was meant

to be excluded. E.g., Fleischmann Distilling. Corp. v.

Mater Brewing Co., supra, 386 U.S. at 719.

Here, petitioners’ cause of action derives from the

Constitution and from 42 U.S.C. 1983, neither of

which contains any basis for concluding that attor-

ney fee awards are precluded in such cases. To

the contrary, Section 1983 provides broadly that a

person who has been deprived of rights, privileges,

or immunities secured by the Constitution and laws

may obtain “redress’’ in an action at law, suit in

*Our position does not suggest that an express statutory

provision for attorneys’ fees (such as Congress has now

enacted in this field, see n. 2, supra) is superfluous. Such pro-

visions may make fee awards available in cases such as private

damage actions where they would otherwise not ordinarily

be available under traditional equitable principles (e.g., 15

U.S.C. 77k(e)); they may make such awards mandatory where

a plaintiff prevails (e.g., 15 U.S.C. 15); they may impose a

particular standard (e.g., 20 U.S.C. (Supp. IT) 1617 and

42 U.S.C. 2000a-3(b), 2000e-5(k), said by this Court to call

for an award of fees to a successful plaintiff “unless special

circumstances would render such an award unjust,” Newman

v. Piggie Park Enterprises, Inc., supra, 390 U.S. at 402;

Northeross v. Board of Educ., 412 U.S. 427, 428); or they

may serve simply to emphasize the view of Congress that such

awards may be particularly appropriate in the type of case

covered by such a provision.

14

equity or other proper proceeding. The express grant

of equity jurisdiction is significant because this Court

has held that under such a grant of jurisdiction a

court may fashion any remedy that would be appro-

priate in the exercise of equitable jurisdiction (see,

e.g., Mitchell v. DeMario Jewelry, Inc., 361 US.

288, 290-292; Porter v. Warner Holding Co., 328

U.S. 395, 399-402; Hecht Co. v. Bowles, 321 U.S.

321, 329-330), especially in litigation noét.strictly pri-

vate in nature. See Virginian Ry. Co. v. System Fed-

eration, 300 U.S. 515, 552.

There was, accordingly, no statutory bar to the

district court’s award of attorneys’ fees in this case.

CONCLUSION

For the foregoing reasons, the judgment of the

court of appeals should be reversed.

Respectfully submitted.

Ropert H. Bork,

Solicitor General.

J. Svancey Porrincer,

Assistant Attorney General.

LAWRENCE G@. WALLACE,

Deputy Solicitor General.

GERALD P. NoRTON,,

Assistant to the Solicitor General.

JEREMY I. ScHWwaRrvTz,

Attorney.

NOVEMBER 1978.

US. GOVEPNMCNT PRINTING (OFFICE: 1973

nisl

-

696 OCTOBER TERM, 1973

Syllabus 416 U.S.

BRADLEY er au. v. SCHOOL BOARD OF THE CITY

OF RICHMOND ert AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

No. 72-1322. Argued December 5, 1973—Decided May 15, 1974

The District Court on May 26, 1971, awarded to the successful

plaintiff-petitioners, Negro parents and guardians, in this pro-

tracted litigation involving the desegregation of the Richmond,

Virginia, public schools, expenses and attorneys’ fees for services

rendered from March 10, 1970, to January 29, 1971. On March 10,

1970, petitioners had moved in the District Court for additional

relief under Green v. County School Board of New Kent County,

391 U. S. 430, in which this Court held that a freedom-of-choice

plan (like the one previously approved for the Richmond schools)

was not acceptable where methods promising speedier and more

effective conversion to a’ unitary school system were reasonably

available. Respondent School Board then conceded that the plan

under which it had been operating was not constitutional. After

considering a series of alternative and interim plans, the District

Court on April 5, 1971, approved the Board’s third proposed plan,

and the order allowing fees followed shortly thereafter. Noting

the absence of any explicit statutory authorization for such an

award in this type of case, the court predicated its ruling on the

grounds (1) that actions taken and defenses made by the School

Board during the relevant period resulted in an unreasonable delay

in desegregation of the schools, causing petitioners to incur sub-

stantial expenditures to secure their constitutional rights, and

(2) that plaintiffs in actions of this kind were acting as “private

attorneys general,” Newman v. Piggie Park Enterprises, Inc., 390

U. S. 400, 402, in leading the School Board into compliance with

the law, thus effectuating the constitutional guarantees of nondis-

crimination. The Court of Appeals reversed, stressing that “if

such awards are to be made to promote the public policy expressed

in legislative action, they should be authorized by Congress and

not by the courts.” Following initial submission of the case

to the Court of Appeals but before its decision, Congress

enacted § 718 of the Education Amendments Act of 1972, which

granted a federal court authority to award the prevailing party a

LION ACLS OTN NAIL RT SN NE EMOTE MT AIIM eR MI Me AE LORRI ROME Mh NILE MEAN NRHN IRE ERT HRA _

BRADLEY v. RICHMOND SCHOOL BOARD 697

696 Syllabus

reasonable attorney’s fee when appropriate upon entry of a final

order in a school desegregation case, the applicability of which to

this and other litigation the court then considered. In the other

cases, the court held that § 718 did not apply to services rendered

prior to July 1, 1972, the effective date of § 718, and in this case

reasoned that there were no orders pending or appealable on either

May 26, 1971, when the District Court made its fee award, or on

July 1, 1972, and that therefore § 718 could not be used to sustain

the award. Held: Section 718 can be applied to attorneys’ services

that were rendered before that provision was enacted, in a situation

like the one here involved where the propriety of the fee award

was pending resolution on appeal when the statute became law.

Pp. 710-724.

(a) An appellate court must apply the law in effect at the

time it renders its decision, Thorpe v. Housing Authority of the

City of Durham, 393 U. S. 268, 281, unless such application

would work a manifest injustice or there is statutory direction

or legislative history to the contrary. Pp. 711-716.

(b) Such injustice could result “in mere private cases between

individuals,” United States v. Schooner Peggy, 1 Cranch 108, 110,

the determinative factors being the nature and identity of the

parties, the nature of their rights, and the nature of the impact

of the change in law upon those rights. Upon consideration of

those aspects here (see infra, (c)-(e)), it cannot be said that the

application of the statute would cause injustice. Pp. 716-721.

(c) There was a disparity in the respective abilities of the parties

to protect themselves, and the litigation did not involve merely

private interests. Petitioners rendered substantial service to the

community and to the Board itself by bringing it into compliance

with its constitutional mandate and thus acting as a “private

attorney general” in vindicating public policy. Pp. 718-719.

(d) Application of §718 does not affect any matured or un-

conditional rights, the School Board having no unconditional right

to the funds allocated to it by the taxpayers. P. 720.

(e) No increased burden was imposed since the statute did not

alter the Board’s constitutional responsibility for providing pupils

with a nondiscriminatory education, and there is no change in the

substantive obligation of the parties. Pp. 720-721.

(f) The Court of Appeals erred in concluding that § 718 was

inapplicable to the petitioners’ request for fees because there was

no final order pending unresolved on appeal, since the language of

§718 is not to be read to mean that a fee award must be made

—_— roams eee NGS IR CAE gape

698 OCTOBER TERM, 1973

Opinion of the Court 416 U.S.

simultaneously With the entry of a desegregation order, and a dis-

trict court must have discretion in a school desegregation case to

award fees and costs incident to the final disposition of interim

matters. Pp. 721-723.

(g) Since the District Court made an allowance for services to

January 29, 1971, when petitioners were not yet the “prevailing

party” within the meaning of §718, the fee award should be

recomputed to April 5, 1971, or thereafter. Pp. 723-724.

472 F. 2d 318, vacated and remanded.

Biackmun, J., delivered the opinion of the Court, in which all

Members joined except MarsHALL and Powe 1, JJ., who took no

part in the consideration or decision of the case.

William T. Coleman, Jr., argued the cause for petition-

| ers. With him on the briefs were Jack Greenberg, James

; M. Nabrit III, Norman J. Chachkin, Charles Stephen

} Ralston, Eric Schnapper, and Louis R. Lucas.

: George B. Little argued the cause for respondents.

With him on the brief were James K, Cluverius and Con-

ard B. Mattox, Jr.*

Mr. Justice BLACKMUN delivered the opinion of the

Court.

In this protracted school desegregation litigation, the

District Court awarded the plaintiff-petitioners expenses

and attorneys’ fees for services rendered from March 10,

1970, to January 29,1971. 53 F.R. D. 28 (ED Va. 1971).

: The United States Court of Appeals for the Fourth Cir-

cuit, one judge dissenting, reversed. 472 F. 2d 318

(1972). We granted certiorari, 412 U. S. 937 (1973),

to determine whether the allowance of attorneys’ fees

Sans pe ce At Sct Hie > ip BIE Aas a aS

eee ee

*Briefs of amici curiae urging reversal were filed by Solicitor Gen-

eral Bork, Assistant Attorney General Pottinger, Deputy Solicitor

General Wallace, and Gerald P. Norton for the United States, and

by David S. Tatel and Armand Derfner for the Lawyers’ Committee

for Civil Rights Under Law.

BRADLEY v. RICHMOND SCHOOL BOARD 699

696 Opinion of the Court

was proper. Pertinent to the resolution of the issue is

the enactment in 1972 of § 718 of Title VII, the Emer-

gency School Aid Act, 20 U. 8. C. § 1617 (1970 ed., Supp.

II), as part of the Education Amendments of 1972, Pub.

L. 92-318, 86 Stat. 235, 369.

I

The suit was instituted in 1961 by 11 Negro parents

and guardians against the School Board of the city of

Richmond, Virginia, as a class action under the Civil

Rights Act of 1871, 42 U.S. C. § 1983, to desegregate the

public schools. On March 16, 1964, after extended con-

sideration,’ the District Court approved a “freedom of

choice” plan by which every pupil was permitted to

attend the school of the pupil’s or the parents’ choice,

limited only by a time requirement for the transfer ap-

plication and by lack of capacity at the school to which

transfer was sought. On appeal, the Fourth Circuit, sit-

*See 317 F. 2d 429 (CA4 1963). Before trial, one pupil-

plaintiff was admitted to the school of his choice, and the court

ordered admission of the remaining 10. The District Court found

that, in general, during the 1961-1962 school year, pupil assignments

in Richmond were being made on the basis of dual attendance zones ;

that promotions were controlled by a “feeder” system whereby

pupils initially assigned to Negro schools were promoted routinely

only to Negro schools; and that, in the handling of some transfer

requests from Negro pupils, the students were required to meet

criteria to which white students of the same scholastic aptitude

were not subject. The court declined, however, to grant general

injunctive relief and ordered only the admission of the 10 pupils.

The Court of Appeals reversed in part. It held that not only

were the individual minor plaintiffs entitled to relief, but that they

were entitled to an injunction, on behalf of others of the class they

represented and who were similarly situated, against the continuation

4 of the discriminatory system and practices that were found to exist.

$ Id., at 438.

7 Ur